Osborne v. State

| Miss. | Oct 15, 1910

McLain, C.

This case was affirmed on a former day of this term (54 South.'450), without a written opinion. The attorney for C. W. Osborne, the appellant, filed a vigorous suggestion of error, based upon supposed errors in our former decision, and presents it in his brief with much skill and ability. In our former investigation, we were fully impressed with the magnitude and importance of the case. Bach and every assignment of error in the record was thoroughly and deliberately considered by each member of this court. As a matter of course, we would not have affirmed it then, unless we had been satisfied that 'the appellant had secured a fair and impartial trial, as guaranteed to him by oar Constitution and the laws of the land.

In this suggestion of error, we find no new questions presented; but from the importance of the case, and out of deference to the ability of counsel, coupled with the earnestness with which he presses his views, we have again thoroughly sifted, with great care, the entire record. But we find nothing therein to cause us to recede from our former opinion; but, on the contrary, this reinvestigation has strengthened us in our conviction that our former decision was right. We will now proceed to consider, in a brief way, some of the suggestions of error relied on. We will not give an abstract of the testimony, as we are satisfied that the jury was fully warranted, under the evidence, in finding the defendant guilty as charged. However, we will say that the theory of the state was that C. W. Osborne, the appellant, Joe Osborne, B. E. Tennery, and Joe Williams conspired to burn the storehouse of J. B. Crow, which appellant was occupying at the time, conducting and carrying on a mercantile busness. It is alleged that his stock of goods at the time of the fire was covered and insured against damage and loss by fire in the sum of three thousand dollars. B. E. Tennery, Joe Osborne, and Joe Williams were indicted jointly, charged under section 1040 of the Code of 1906, with the burning of the storehouse, with intent to injure the said J. B. Crow. C. W. Osborne, appellant, Joe Williams, Joe Osborne, and B. E. Tennery were jointly indicted for the burning of the stock of goods in the storehouse at the time of the fire, with intent to defraud the insurance company. This indictment was drawn under section 1041, Code of 1906. Joe Osborne, Joe Williams, and B. E. Tennery, pleaded guilty to the indictment charging them with burning the storehouse. One year or more afterwards, C. W. Osborne, the appellant, was put upon trial on the indictment charging him, J oe Osborne, Joe Williams, and B. E. Tennery with burning the stock of goods contained' in the storehouse, with intent to defraud the insurance company. Appellant was convicted and sentenced to the penitentiary for seven years. The other parties have not been tried upon this indictment; they having pleaded guilty at the former term of the court to the indictment charging them with the burning of the storehouse. At the time of the fire, appellant was some miles away, in another neighborhood, hunting with some friends. Joe Osborne was a cousin and employee of the defendant, working at the time in a storehouse in the town of Charleston, Mississippi, which belonged to the appellant. Joe Williams was a negro tenant on appellant’s farm near the Payne store, that was burned, and R. E. Tennery had no business connection with the appellant, so far as the. record shows.

The first contention by the attorney for appellant finds expression in the following: “Without Joe Williams’ testimony, the state would entirely fail.” And he insists that Joe’s contradictory statements and general deportment are such, as shown by the record, as that the court-would not be justified in sustaining this verdict. It is true that the record shows that Joe Williams had made, prior to the trial, many statements contradictory to his testimony delivered at the trial. Counsel earnestly insists here, and no doubt pressed with great force and eloquence to the jury, that Joe was unworthy of belief, because of these contradictory statements made on several occasions. It is well settled that the question- of credibility of a witness is one which belongs exclusively to the jury.

It is further urged that he was an accomplice. This is true. The well-settled rule, announced by this court time and again, is that the testimony of an accomplice should be received and weighed with great distrust and jealousy by the jury. But it is equally as well settled that it is impossible to say, as a question of law, that he should not be believed. The jury was told this by proper instructions. It is the province of the jury to determine what credit to give to the testimony of an accomplice, from his manner and general appearance upon the stand, and all other surrounding and attending circumstances. - It is for them to say solely how far he has been corroborated. Indeed, it is their privilege, if they see' proper, to believe him without corroboration. Under proper instructions, the jury in this case passed upon the credibility of the witness. How much weight if any, they gave it, we do not know. They may have attached much, little, or no importance to it. This court has held that, in passing upon the worth of the testimony of an accomplice, ‘ ‘ the question of credibility is one which belongs so exclusively to the jury that it would be a delicate point for the court to touch it.-” Keithler v. State, 10 Smedes & M. 194.

' Counsel further contends that the declarations alleged to have been made by the co-conspirator, Joe Osborne, were not admissible against C. W. Osborne, the appellant, -because made after the completion of the crime. It is a well-settled rule — -indeed, it is elementary — “that, even after a conspiracy has been established, the admissions of one or more of the conspirators are admissible to affect their associates only when made during the progress or in the prosecution of the unlawful design about which they have conspired; and hence, if made after its completion or abandonment, they are inadmissible.” Lynes v. State, 36 Miss. 617" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/lynes-v-state-7998433?utm_source=webapp" opinion_id="7998433">36 Miss. 617. Counsel does not deny this principle of law; but he, with great force and earnestness, contends that, when the stock of goods was burned, ■the crime for which appellant is charged was consummated and completed. Counsel is in error. What was the object of the conspiracy? The evidence makes it as clear as the noonday that it was to defraud the insurance company. The burning of the store and stock of -goods was the means used to accomplish that end. At the time these admissions are claimed to have been made, 0. W. Osborne, tbe appellant, bad not succeeded in getting a settlement with the insurance company;, but the evidence shows that he was using his best efforts to do so, and these efforts continued up to April 27th, the fire having occurred on February 4th, prior. These alleged declarations of the co-conspirators, testified about by witnesses, were made some time between February 4th and April 27th. At this time the object of the conspiracy had not been accomplished. These alleged declarations were properly admitted. “Acts or declarations of conspirators are not always excluded because they were done or made after the commission of the crime. If for any reason, as for escape or concealment, the common purpose continues, declarations in furtherance thereof are admissible, although the crime which was the object of the conspiracy has been' consummated.” 12 Cyc. 438, i. “Where the conspiracy has for its purpose, not only the commission of a crime, but also a division of the profits, or the realization of the benefits, which are the results therefrom, as in conspiracy to commit larceny or embezzlement, the declarations by one conspirator, made after the crime, but before the subsequent arrangements are complete, are competent as against his co-conspirators.” 12 Cyc. 438, j.

It is further insisted that it was error to admit evidence of the pleas of guilty of Joe Osborne and R. E. Tennery. In support of this contention, counsel for appellant contends that the pleas of guilty were to an indictment for a different crime (burning of storehouse) than the one lodged against appellant (burning of goods), and therefore it in no way showed appellant’s connection with the case. There is no merit in this contention. The pleas of guilty were admissible. They showed a confession on the part of Joe Osborne and Tennery. It is true these pleas of guilty were to an indictment for burning the storehouse. The burning of the storehouse and the stock of goods- was one and the same fire. Under these facts, this evidence was just as competent as if the pleas of guilty had been to the indictment for the burning of the goods. Under the facts of this case, to hold otherwise would be a construction too strained and unreasonable, too captious and technical.

To convict this appellant, the state was compelled to show that the fire was of an incendiary origin, and that Williams, Tennery, and Joe Osborne, or one of them, were the guilty parties. It is true the state had shown this fact by Joe Williams while on the stand; but the state was not confined alone to the testimony of Williams. Bear in mind the evidence to show these pleas of guilty was not competent for the purpose of proving that the intent was to defraud the insurance company, nor was it competent to show that the appellant, Osborne, had any guilty connection whatever with Joe Osborne, E. E. Tennery, and Joe Williams in the unlawful burning. The plea of guilty was properly admitted. In our own state it was held, in the case of Keithler v. State, 10 Smedes & M. 193, that “on the trial of a prisoner, indicted as an accessory to murder, the record of the conviction of the principal is evidence to prove that conviction, and all its legal consequences, though not evidence of the fact of the guilt of the prisoner. ’ ’ This same question is decided in the case of Lynes v. State, 36 Miss. 617. Upon the same'point we find, in 2 Wigmore on Evidence, .sec. 1079: “That a confession of a principal is admissible, on the trial of the accessory, to evidence the commission of the crime by the principal, seems clear on principle, supposing' some evidence of the defendant’s cooperation to be first furnished. But whether the judgment of conviction of the principal is receivable for the same purpose depends on the doctrine of the effect of judgments'. ’ ’

It is further insisted that, under section 1026 of the Code of 1906, it was not necessary to show the conviction of Tennery and Osborne in order to convict the appellant. Section 1026 reads as follows: “Every'person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal and shall be indicted and punished as such; and this whether the principal has been previously convicted or not.” If we catch the idea of counsel, the section does not bear the interpretation put upon it by him. It was simply intended to charge all accessories to any felony before the fact as principals. Nevertheless, where several are indicted jointly for a felony, if the evidence shows that one or more were accessories before the fact, though charged in the indictment as principals, it is absolutely necessary to prove the party guilty who actually committed the felony before you can secure proof of .the guilt of the accessories ■ before the fact, though charged in the indictment as principals, by virtue of section 1026, Code of 1906. It is true that under this section the accessory can be tried and punished as a principal, before or after the principal has been tried.

With great zeal counsel for appellant contends that “there was no evidence of a conspiracy, other than the declarations of the co-conspirators themselves, and that these declarations were not admissible until the state had introduced other proof sufficient to establish a conspiracy.” In the consideration of this question, it is well to keep in mind, as we have said heretofore, that before the declaration of one party can be received in evidence against another, in a criminal prosecution, there must be proof of a conspiracy aliunde. “But it is quite as well settled that a conspiracy may be proved, like other controverted facts, by the acts of parties or by circumstances, as well as their agreement.” Street v. State, 43 Miss. 2.

We have considered this record thoroughly, and it is manifest to us that the court did not admit any of the declarations of the co-conspirators until the conspiracy had been proven. Taking Joe Williams’ testimony, and construing it in the light of all the facts and circumstances contained in this record, especially considering the facts and circumstances surrounding this fire and the conduct of the appellant, both before and after .the fire, one is driven to the conclusion that they are absolutely inconsistent with any possible explanation, except upon the theory that he had conspired with Joe Osborne, Joe Williams, and R. E. Tennery to burn the building and stock of goods, with a view of defrauding the insurance company. There are many and various criminating circumstances in evidence in this case to point’with almost absolute certainty that the attempt to defraud the insurance company was a well-planned and premeditated scheme on the part of appellant. The jury believed him guilty and doubtless they further believed that he was the master hand that inspired, directed, and planned the whole thing, and was in truth and in reality “the power behind the throne.”

We think that this suggestion of error should be overruled. In the preparation of this opinion, we have been greatly aided by the able brief filed in this cause by the learned assistant attorney-general, Mr. Carl Fox.

Overruled.

Per Ctjriam.

The above opinion is adopted as the opinion of the court on the suggestion of error; and, for the reasons therein indicated, the suggestion of error is overruled.